Common Employer Pitfalls -- Ways that employers often hurt their chances of winning unemployment cases

by Larry Clark

Simple mistakes often cause employers to unknowingly hurt their chances of winning unemployment cases.  Improve your organization's chances of winning your unemployment cases by avoiding these common employer pitfalls:

Failing to take immediate action when a worker violates your rules

You should immediately warn, suspend or discharge in accordance with your policies.  Too often employ­ers wait to take action until they have hired someone to replace the offending worker.  The state unemployment agencies usually rule that such delays serve to condone the rule violations.

Discharging workers that give notice of their intent to quit

In most states, this will convert the worker's separation into a discharge.  In discharge cases, the employer has the burden of proving misconduct.  This usually results in the worker being found eligible for their entire jobless claim.  Merely paying their salary through the period of their notice will (in most states) allow the state agency to adjudicate the separation as a voluntary quit.

Discharging due to absence when the final absence was for compelling reasons

Your unemployment case will likely hinge upon whether the state believes that the final absence was within the worker's control.

Making an agreement that a discharge will be treated as a quit

Making an agreement with the discharged worker to treat his/her involuntary separation as voluntary may be beneficial to the existing worker, but it does not relieve you of the burden of proving misconduct.  Furthermore, such agreements often restrict the employer's ability to give factual information to the state unemployment agency.

Refusing to grant a leave

The Family Medical Leave Act (FMLA) requires employers with fifty (50) or more workers (employed for at least 12 months) with up to 12 weeks of unpaid job pro­tected leave per year to:

During the leave, employers must maintain the worker's group health benefits.  At the end of the leave employers must, under most circumstances, reinstate the employee to the same position or an equivalent position.  Even if a worker fails to qualify for FMLA, you may want to allow them to take approved time off if they have compelling reasons for requesting a leave.  If you put him/her in the position of having to quit (by denying his/her leave request), he/she may be eligible for unemployment benefits because his/her quit may be justified by the same compelling reasons that motivated the leave request.

Refusing to transfer a worker

Workers that have compelling reasons for seeking changes in their work location or work circumstances may be ruled eligible for benefits by the state unemployment agency because they took reasonable actions to rectify their prob­lems prior to quitting.

Ignoring worker complaints

A worker that complains about harassing coworkers or unsafe working conditions (or any other valid complaint) may quit and be paid jobless benefits because he/she has given his/her employer reasonable opportunities to correct the problems.

Using former workers to fill-in for absent workers

Bringing laid-off workers back to work may reduce charges to your unemployment account, because they will not be eligible for jobless benefits during the time they are working.  Conversely, recalling workers that quit or that were discharged due to misconduct may prove very costly; Workers that leave under conditions that would normally disqualify them from jobless benefits may be eligible if they have subsequently completed a temporary assignment prior to filing their jobless claim.  State unemployment agencies will generally ignore the earlier separation and consider only the reasons for leaving the last job.

Larry Clark is a principle member of Employer Advocates LLC, and has been in the unemployment cost control industry for 35 years.

Disclaimer:  The information contained in the examples given on this page is general in nature and is not intended as legal advice.  There are no guarantees that a particular state unemployment adjudicator will rule as others have in the cited examples.  Individuals seeking legal advice concerning the handling of similar matters should consult with their attorney, rather than relying upon the information given.

The purpose of this document is to educate clients and potential clients about unemployment compensation. While some effort has been made to address the many differences in laws and procedures in the 53 different jurisdictions (each of the fifty states plus Puerto Rico, Washington D.C. and the Virgin Islands), the primary purpose of this presentation is to review some basic principles shared by many jurisdictions.